an open-source thought experiment in psychedelic law and policy

"Rutgers University delivers strong uppercut to Governor Christie," or "The New York Times’ Newspeak"

Saturday’s New York Times ran a story that crystallizes into a little pill-size dose large volumes of the conceptual chaos called “drug control policy.”

The title of the article is “New Jersey’s Medical Marijuana Law Loses Planned Grower and Dispensers.” That is utter nonsense.It is the famed Newspeak of Orwell’s “1984.” The headline is a complete mischaracterization of the story which the article tells.

Question: Why did I title this post with the aggressive and dramatic imagery of the chief executive of the State of New Jersey sustaining a very dangerous blow to the head – in contrast to NYT’s bland characterization?

Answer: I recognize that it is really a war – a “Drug War” – in the sense of absolute war. It is a war in which everyone is a combatant, because it is an economic war – a war over whether cannabis may enter the free market in which we are all consumers. It is a war over whether cannabis may compete simultaneously with both (a) “medicines” and (b) mood-altering psychoactive substances such as alcohol and, more subtly, tobacco and caffeine. It is a war over whether a new legal industry may come into being – a legal cannabis industry. It is a form of anticompetitive restraint of trade created and maintained by the United States Government.

Prohibition of psychedelic therapeutics, including “medical marijuana,” is a war, and Christie was doing his duty as a dedicated drug warrior faced with an unpleasant reality: he had just become governor of a state that had legalized the sale and purchase [note the free market concept] of cannabis under very narrow circumstances. The New Jersey statute contemplates that nonprofit dispensaries may grow cannabis and sell it to patients. Those are the “alternative treatment centers” to which I referred in my last post.

Private enterprise. Outrageous.

Christie decided to destroy the incipient medical marijuana program by announcing that he wanted a drastic revision to the statute – a statute which the legislature had already passed and which the previous governor had already signed into law.

First, of course, he declined to comply with the statutory requirement that his branch of government, i.e. the executive branch as represented by the Department of Health and Senior Services, draft regulations that would allow the program to come into being. Then, when the activists and patient advocates knocked on his door to ask him to explain his malfeasance, he announced that he really just intended to kill the program. How did he do that? He announced his intent to create a government monopoly on the supply of cannabis, and not only would he take supply out of the hands of the private sector but he would put it in the hands of bureaucracies that cannot in practice implement the program because of federal law.

Under Christie’s plan, Rutgers University would be the sole entity that could cultivate cannabis and only hospitals could dispense it. I said, as did Chris Goldstein of Philadelphia NORML, that this plan was dead on arrival because in no way, shape. or form could universities or hospitals, as creatures hopelessly dependent on federal funding, engage in such brazen defiance of federal law and survive financially.

And thus today’s NYT article reports: “But on Thursday, Rutgers announced that it would not participate for fear of losing grants from the federal government. State officials said the hospitals had the same concern.” And again: Robert Goodman, the executive dean of agriculture and natural resources at Rutgers said “‘it just puts too much at risk,’ jeopardizing research grants, contracts, student aid or other funds from Washington.” And again: “The New Jersey Council of Teaching Hospitals declined to comment, but several people briefed on the discussions said the hospitals wanted some kind of guarantee that they would not be jeopardizing federal money.”

Of course they want a guarantee. And of course Christie cannot make that guarantee. And that’s why the proposal was a plan to abort the medical marijuana program. Along the lines of what I have argued previously, anyone who makes that kind of proposal without reaching an informed conclusion that it is viable under federal law is either grossly incompetent and should not be allowed to remain in a position of authority or understands the consequences and seeks them.

When Rutgers University came forward and said to the media that it cannot do what the Governor wants out of a healthy fear and sense of self-preservation, it shouted that the Governor Wears No Clothes – because it was a no-brainer that the proposal was a bad joke. I assume that Rutgers needed to come forward and make the statement because no one in the Governor’s Office had the common decency to come forward and admit the obvious.

NYT reports that the governor is angry about the university’s decision – and of course he should be: they didn’t continue to run interference for him.

Now, the more interesting comment is the report that one of the sponsors of the bill, Assemblyman Reed Gusciora, thinks that Rutgers is “‘chickening out'” by not testing federal authorities’ willingness to grant a waiver. That is an interesting idea – the university should enlist in the medical marijuana movement, jeopardizing its financial well-being in the name of ending federal cannabis Prohibition. That would be very valorous and self-destructive, but I sense from the article that Gusciora may not be up on the issue: the university would be violating the Controlled Substances Act by manufacturing a federally-controlled substance without being first licensed by the Drug Enforcement Administration. See 21 U.S.C. 823(a). What Gusciora seems to say is that the DEA should allow Rutgers to manufacture cannabis without going through the licensing process.

Again, I doubt that anyone has really thought the issue that much, because if they had done so they would have run across the administrative proceeding in which the Multidisciplinary Association for Psychedelic Studies has attempted to obtain DEA’s permission for Dr. Lyle Craker at the University of Massachusetts to manufacture cannabis – so that MAPS can conduct the clinical trial of cannabis which the DEA says is lacking. The short version is that MAPS wanted to obtain a legal source of cannabis for use in a clinical trial. The only way for MAPS to obtain cannabis under federal law is to deal with a manufacturer of cannabis licensed by the DEA. There is only one such manufacturer, the National Institute on Drug Abuse (NIDA), a federal administrative agency in the Department of Health and Human Services; NIDA has contracted with the University of Mississippi to grow its cannabis since the 70s. NIDA won’t let MAPS have any cannabis to do a clinical trial. Also, MAPS has explained that it is ultimately pointless to conduct FDA-compliant clinical trials of cannabis: MAPS cannot demonstrate that the final product brought to market will correspond to the substance tested – because the supply is in the hands of a government monopoly. The DEA administrator rejected the determination by the agency’s Administrative Law Judge in 2007 that the agency should license Dr. Craker to manufacture cannabis. The government monopoly remains protected. A government monopoly on the supply of the substance. Sound familiar? Sound like Christie’s plan?

That’s a large part of why I think the NYT article is so disingenuous. It says “The Obama administration has stopped the practice of raiding medical marijuana dispensaries in [states that have ‘medical marijuana’ laws] but the Drug Enforcement Administration remains reluctant to grant permission to grow the plants, even for medical research.” “Reluctant”? The DEA refuses to break the government monopoly on the supply of cannabis. That’s not reluctance. That is a blockade – an act of war.

I come back to my point from earlier posts. The state medical marijuana laws are a populist uprising against federal Prohibition as embodied in the Controlled Substances Act. It is absolutely essential to avoid the federal government at all costs – you should definitely not designate only entities that depend on federal funding as the sole suppliers to the market. Someone who is going to violate the Controlled Substances Act by growing cannabis without a DEA license should at least be someone willing to assume the risk. Maybe the DEA would not want the bad press of arresting private citizens who create a corporation and get licensed by their state to grow cannabis: presumably those people are militant activists who are in the struggle because it is just, they hate tyranny, and they are ready for the fight. However, it should be much, much easier to intimidate a large institution that has depends on federal funding and has other business besides overthrowing the criminal ban on psychedelic therapy.

The NYT article closes with the statement “the plan to use Rutgers and the teaching hospitals would have given the state far more direct control over the program than the Legislature intended.” Well, that’s really the issue, isn’t it? The statute expressly provides for the operation of not for profit corporations as growers and sellers of cannabis; the officers and directors of those corporations will assume the risk of growing cannabis without a DEA license – a risk which we can assume no sane hospital administrator or university president will take. Those corporations will be the prototype of retail sale to customers. Christie has attempted to prevent those corporations from coming into existence – first by ignoring the deadline for the state to promulgate regulations for the program and then by attempting to chain the program to the federal government, as described above. Now that Rutgers has exposed his proposal for what it is – ludicrous – the question is whether he will continue trying to impair the program or whether he will allow cannabis to be integrated into a legal market in New Jersey.